03 November 2016

Balancing access and trust: Productivity Commission ushers in the new ‘data’ age

This article was written by Smriti Arora.

The Productivity Commission has today released its much-anticipated draft report into Data Availability and Use. If accepted, the recommendations will significantly impact every sector in the Australian economy. The four key elements that underpin the Commission’s recommended approach are:

  1. Giving individuals greater control over data about them;
  2. Enabling broad access to data that is of national interest;
  3. Increasing the usefulness of publicly funded data; and
  4. Creating a culture in which non-personal and non-confidential data gets released by default.

Below we outline our top 3 takeaways from the draft report.

1. The proposed reforms are significant. They represent a paradigm shift away from a system of risk aversion and avoidance, to one based on transparency and confidence in data processes.

The proposed reforms are not mere tweaks to the existing system. The draft report poses that in order for Australia to take advantage of largely untapped datasets, marginal changes to existing structures and legislation will not suffice.

Central to the suggested reforms is the introduction of “National Interest Datasets” which are public or private sector datasets that are deemed to be of national interest. National Interest Datasets will not attract the existing legal regime of restrictions to access and use of data. Rather, new arrangements set out under a “Data Sharing and Release Act” will apply. The Draft Report notes that the suite of National Interest Datasets must extend beyond the low hanging fruit of spatial data and aggregated activity data to include access to key privately held datasets. The Commission proposes that a Parliamentary Committee should be responsible for determining which datasets should be designated as national interest datasets and to whom a dataset can be disclosed. We expect there to be debate around what qualifies as being “in the national interest”, particularly where there are competing interests at play in opening up some data sets to the public.

2. Individual consumers will have rights to direct data holders to copy data into a machine-readable form, either to the individual or to a nominated third party.

A major component of the recommended reforms is for individuals to have greater control over their data, through a new “Comprehensive Right” for consumers set out under the proposed Data Sharing and Release Act. Individual consumers will have the right to a machine-readable copy of their data (for example, bank statements), which is either provided to them or a nominated third party (such as a competitor of the data holder).

While these rights do not extend to companies, partnerships and other non-individual structures, this brings Australia into line with a movement internationally towards increasing consumers’ access to information that businesses hold about them and their transactions.

The Commission suggests a blended governance model to determine the standards around file formats and definitions for the sharing of data. This may be done through open application programming interfaces or file transfers. Industries will be responsible for determining the best standards for sharing data, however if these do not adequately enable data access and transfer, the Commission recommends that the government step in to facilitate this process.

3. The Commission’s “Comprehensive Right” formalises existing consumer protections as “rights” enforceable in the same way as existing powers.

As part of the new “Comprehensive Right”, consumers retain the power to view information held about them, request edits or corrections, and be advised of disclosure to third parties. The Commission’s recommendations neither reduce nor increase existing access powers, but rather redefine them as a “right”. They are enforceable in the same way as existing powers – via a complaint to the Office of the Australian Information Commissioner. Individuals will also have improved rights to opt out of the collection of their data in some circumstances. However, this is limited by a range of exceptions which prevent individuals opting out of data collection by public sector agencies, or requesting that their historical data is deleted or use of it ceased.

The draft report is wide-ranging and radical in its recommendations, which include significant revisions to existing laws (e.g. the Privacy Act), creating new legislation designed to aid the free flow of data, and establishing a new regulatory role of the National Data Custodian. Submissions on the draft report are due by Monday 12 December 2016.

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